IMPORTANT POINT
The onus is on the party seeking leave to file additional documents to demonstrate valid and sufficient reasons for the delay, and the failure to furnish reasons explaining the delay in producing the documents would prove fatal to the request for filing of additional documents.

JUDGMENT :

MOHAMMED SHAFFIQ, J.

Prayer: The Original Side Appeal filed under Order XXXVI Rule 9 of the Original Side Rules read with Clause 15 of Letters Patent to set aside the Order and Decreetal Order dated 09.12.2022 passed by the learned Judge in A. No. 5450 of 2022 in C.S. No. 256 of 2013.

1. Heard both sides and perused the records.

2. The present appeal is filed by the appellant/second defendant in the suit in C.S. No. 256 of 2013, challenging the order rejecting the application filed by them, seeking leave to file additional documents, on the premise that the learned Judge had erred in not exercising discretion vested on him to receive additional documents under Order IX Rule 8 of the Original Side Rules read with Order VIII Rule 1A(3) of the Civil Procedure Code (in short, “the CPC”) though the said documents are stated to be essential for resolving the issues involved in the suit and for rendering complete justice to both the parties.

3. A reading of the order impugned in this appeal, would reveal that the learned Judge had rejected the above application viz. A. No. 5450 of 2022 in C.S. No. 256 of 2013 primarily for two reasons:

(a) The application seeking leave to produce additional documents at a belated stage cannot be allowed for mere asking, but the applicant must make out a case for granting leave. In other words, the applicant must satisfy the Court that he was prevented from producing the documents, which were in his possession at the time of delivery of his pleadings or atleast at the time of trial. In the absence of any explanation for his failure to produce the documents, which were in their custody, it is not open to the applicant to seek leave, that too, at the time of arguments.

(b) Secondly, the trial was over; and the learned counsel for the plaintiffs and the learned counsel for the second defendant have also advanced arguments and it is at that stage that the said application has been filed. Thus, the application is at a belated stage of the suit, more so, no reasons explaining the delay, have been set out in the affidavit filed in support of the application.

4. For better appreciation, the relevant portion of the affidavit filed in support of the application to permit the second defendant to file additional documents is extracted below:

“7. Subsequently an interim Award and later final award came to be passed on the strength of the Memorandum of Compromise dated 18.11.2011 duly signed by the parties and their advocates. The said Award was challenged in O.P. No. 307/2013 before this Hon'ble Court and ultimately the Petition filed under Sec. 34 of the Arbitration and Conciliation Act was dismissed and the Award had become final and conclusive between the parties hereto. Since an Arbitral dispute arose between the 1st Defendant and 2nd Defendant arising out of original Memorandum of Understanding dated 27.11.2006 and 31.03.2007, which shall have direct and substantiate bearing on the subject matter of the present proceedings, we are adviced to file the present application in filing the additional affidavit of documents on behalf of the 2nd Defendant/Applicant herein and receive the same or either by consent of parties or by condoning in filing additional affidavit of documents through me, so that the Hon'ble Court shall be in a position to appreciate and come to a just and proper conclusion in the light of the orders passed by this Hon'ble Court and also in the light of the Award passed by the Sole Arbitrator and decide the matter in controversy. For the purpose of appreciating the rival claims and defense projected by the respective parties, in the present suit it is just and necessary that the documents mentioned in the affidavit of documents and Judges summons may be received. Unless such documents are received in evidence in the present suit and are dealt with in accordance with law, we shall not be in a position to place our defense to the suit claim as against the defendants and the suit property.”

4.1.